Secretary, Department of Education v Palmer
[2021] NSWPICMP 188
•7 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Palmer [2021] NSWPICMP 188 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Caitlin Palmer |
| APPEAL PANEL: | Member Carolyn Rimmer |
| DATE OF DECISION: | 7 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Matter referred to the Medical Assessor (MA) for assessment of whole person impairment (WPI) of left lower extremity, right lower extremity, right upper extremity, scarring and upper digestive tract; Held - Appeal Panel concluded that the MA made a demonstrable error in stating Member Haddock had accepted that Ms Palmer had an upper digestive tract impairment when she had, in fact, found that there was a consequential condition of the upper digestive tract; however, the Appeal Panel on reviewing the evidence made the same assessment of WPI as the MA and the Medical Assessment Certificate was confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 July 2021 the Secretary, Department of Education (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injuries Commission (the Commission). The medical assessment was made by Dr Damodaram Prem Kumar, Medical Assessor (MA) and issued on 28 June 2021.
The respondent to the appeal is Caitlin Palmer (Ms Palmer).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, Ms Palmer is claiming lump sum compensation in respect of left lower extremity (knee), right lower extremity (knee and ankle), right upper extremity (shoulder), scarring (TEMSKI) and upper digestive tract as a result of the injury on 17 June 2013.
In the Certificate of Determination (COD) dated 12 April 2021 Member Haddock determined that Ms Palmer had sustained a consequential condition of her digestive system as a result of injury on 17 June 2013. Member Haddock remitted the matter to the President for referral to a Medical Assessor/s for assessment of permanent impairment of the left lower extremity, right lower extremity, right upper extremity, TEMSKI scarring, and upper digestive system.
In the Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 27 April 2021, the matter was referred to the MA, Dr Kumar, for assessment of whole person impairment (WPI) of the left lower extremity (knee), right lower extremity (knee and ankle), right upper extremity (shoulder), scarring (TEMSKI) and upper digestive tract with the date of the injury being 17 June 2013.
The MA examined Ms Palmer on 13 May 2021. He assessed 2% WPI of the left lower extremity (knee), 8% WPI of the right lower extremity (knee and ankle), 2% WPI of the right upper extremity (shoulder), 2% WPI for scarring (TEMSKI) and 3% WPI of the upper digestive tract. Therefore, the total assessment was 17% WPI in respect of the injury on 17 June 2013.
On 10 September 2021, an Amended MAC was issued by the Commission which included paragraph 10(a) of the MAC. This paragraph which had been deleted from the original MAC by mistake reads as follows:
“In making that assessment I have taken account of the following matters:- the history of the injury, the various specialist reports provided, imaging, sonographic, operative and investigation results, my interview, as well as the physical examination”.
On 27 September 2021, a Further Amended MAC was issued by the Commission. In Table 2 of the Further Amended MAC, the MA corrected the assessment of the upper digestive tract from 2% WPI to 3% WPI. The Appeal Panel noted that this change made no difference to the combined Table values of all subtotals and was consistent with the assessment of WPI of the upper digestive tract in paragraph 10(b) of the original MAC. The Appeal Panel noted that neither party had made submissions in the appeal concerning this obvious error and the correction was not, in the Appeal Panel’s view, relevant to the issues to be determined in the appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Ms Palmer be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Palmer to undergo a further medical examination because there was sufficient evidence on which to make a determination.
The Appeal Panel issued a Preliminary Review Notice on 6 September 2021 calling for the the biopsy report from the gastroscopy of 22 September 2015 by Dr Kenneth Koo at Boulevard Day Surgical Centre. The biopsy report dated 23 September 2015 by Dr Tao Yong was produced by the respondent’s solicitors.
On 21 September 2021 the Appeal Panel directed that a copy of Dr Yong’s report dated 23 September 2015 be sent to the appellant’s solicitors, and the parties file any submissions in respect of the report by Dr Yong dated 23 September 2015 within 7 days.
The appellant filed further submissions dated 29 September 2021. Ms Palmer filed submissions dated 1 October 2021.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificates given by the Medical Assessors that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant‘s submissions included the following:
· The MA fell into demonstrable error by relying on the findings of Member Haddock in COD dated 12 April 2021 to conclude that Ms Palmer suffered from permanent impairment of the upper digestive tract, as the Member lacked jurisdiction to make such a finding.
· The decisions of Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (Haroun), Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) make it clear that the determination of the degree of permanent impairment that results from an injury “is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator” (Jaffarie at [249], citing Bindah at [112]). This was upheld in the very recent decision of Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 (Shankar), which held that despite s 65(3) of the Workers Compensation Act 1987 (the 1987 Act being repealed, which prohibited Members of the Commission from assessing permanent impairment, it was still not permissible for Members to do so. Further “a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction” (Jaffarie at [249], citing Haroun at [16] and [19]-[21]).
· At Part 10(c) of the MAC the MA stated: “…It has been accepted that she had an upper digestive tract impairment consequential to the use of medication in treating the musculoskeletal problems she sustained” . Member Haddock did not determine whether Ms Palmer had any upper digestive tract impairment and lacked the jurisdiction to make such a finding. This was why the Member referred Ms Palmer for assessment by the MA in the first place.
· The only issue for determination before Member Haddock was whether Ms Palmer suffered from a consequential gastrointestinal injury as a result of her accepted injuries on 17 June 2013. This required a determination of whether Ms Palmer suffered gastrointestinal symptoms and whether they were causally related to the subject injury on 17 June 2013. Member Haddock found in favour of Ms Palmer on that issue, however, that was very separate from a finding that Ms Palmer suffered from upper digestive tract impairment.
· A fair reading of the MA’s comments at Part 10(c) showed that he considered that he was bound by Member Haddock’s findings, which he used as the basis for his examination and assessment of Ms Palmer’s permanent impairment. This was evident from the fact that the MA disregarded Associate Professor Truskett’s opinion because “Kerry Haddock has clearly determined on which report to accept…”
· Additionally, the MA erroneously accepted Member Haddock’s determination to conclude that a finding had been made as to the existence of permanent impairment of the upper digestive tract despite the MA have sole jurisdiction to determine that issue.
· The MA fell into demonstrable error by failing to have any consideration to the reports of Associate Professor Truskett. The decision in De Gelder v Rodger (No 2) [2014] NSWSC 1355 (De Gelder (No 2)) held that circumstances in which the decision maker fails to consider relevant material may constitute a demonstrable error.
· The decision in De Gelder (No 2) was later referred to in Wentworth Community Housing Limited v Brennan [2019] NSWSC 152 (Wentworth Community Housing). In Wentworth Community Housing, AsJ Harrison noted at [73] that De Gelder (No 2) concerned the decision of an appeal panel; however, the principle was “equally applicable to the decision of the AMS…”
· At Part 10(c) of the MAC, the MA noted the following:
“There is a Certificate of Determination by Member Kerry Haddock with a determination date of 12/4/21. This determination has examined in detail various medical opinions, in particular the main controversial point has been whether she has assessable upper digestive tract symptoms. It has been accepted that there is no lower digestive tract symptoms related to medication use. There is a detailed discussion about the opinions of doctors, particularly Dr Phil Truskett, as compared to that of her treating specialist, Dr Koo, Gastroenterologist, who has done a gastroscopy on her. His opinion has been agreed to with Dr Neil Berry, General Surgeon. Kerry Haddock has clearly determined on which report to accept and this is outlined in detail in the determination. It has been accepted that she had an upper digestive tract impairment consequential to the use of medication in treating the musculoskeletal problems she sustained”.
· It was clear from the MA’s reasoning that he obviously disregarded Associate Professor Truskett’s reports. In applying De Gelder (No 2) and Wentworth Community Housing, this was a demonstrable error. Had the MA properly considered the reports, there would likely have been some discussion regarding the issue raised by Associate Professor Truskett, being that there were no signs of digestive tract disease as required by paragraph 16.9 of the Guidelines.
· In addition, the decisions in Haroun and Jaffarie provide that Member Haddock’s findings cannot bind the MA, as she does not hold jurisdiction to determine the extent of the respondent’s permanent impairment. That is, the MA could not disregard the reports of Associate Professor Truskett on the basis that Member Haddock did not agree with them. Instead, the MA was required to arrive at his own conclusions.
· This fundamental error resulted in the MA’s failure to provide adequate reasons for his assessment of permanent impairment, as required by Campbelltown City Council v Vegan [2006] NSWCA 284. The Court of Appeal held that an appeal panel is obliged to give reasons. Additionally, where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred.
· Due to the MA’s failure to consider Associate Professor Truskett’s report, he was unable to identify a significant point of contention between the parties, being whether Ms Palmer had “symptoms and signs of digestive tract disease.” Associate Professor Truskett was of the opinion that only symptoms of digestive tract disease were present, whilst Dr Berry considered that signs and symptoms were present. This was a significant issue given that a finding that Ms Palmer did not have “symptoms and signs” would result in an assessment of 0% WPI.
· The MA ultimately concluded that Ms Palmer had signs and symptoms of digestive tract disease. He stated at Part 10(b) that:
“…Furthermore, clinical examination today has revealed tenderness in the epigastrium to palpation. She therefore meets the criteria of having symptoms and signs of digestive tract disease as defined in Item 16.9, Chapter 16, page 78, Workcover Guidelines”.
· Associate Professor Truskett also recorded pain in the epigastrium but concluded that only symptoms of digestive tract disease were present, rather than “symptoms and signs”.
· Given the significance as to the question of whether “symptoms and signs” were present, and the fact that there was more than one conclusion open to him, the MA was obligated to explain how he reached his conclusion. However, no reasons were provided, which amounted to a demonstrable error.
· The MA fell into demonstrable error by finding that Ms Palmer had “symptoms and signs of digestive tract disease”.
· “Signs”, in the context of paragraph 16.9 of the Guidelines, are objective evidence of disease as opposed to “symptoms”, which is a manifestation of disease apparent to the patient themselves and is subjective, as suggested by Associate Professor Truskett.
· At Part 10(b) of the MAC, the only finding that the MA made was that there was tenderness in the epigastrium to palpation. This essentially means pain in the central abdomen when the MA lightly touched Ms Palmer. Pain is a subjective measurement, which amounts to a “symptom”, as it is a manifestation of a disease apparent to Ms Palmer. This can be contrasted from other findings, which would amount to “signs”, such as clubbing of the fingers, the presence of liver palms or enlarged lymph glands, which are all objective findings identifiable by the MA.
· The fact that the MA recorded no such findings is suggestive of him being unable to identify any “signs” of digestive tract disease. To say that “signs” were present when none were amounts to a demonstrable error. This ultimately led to the MA’s failure to apply the correct criteria under paragraph 16.9 of the Guidelines. Had he done so, the assessment of upper digestive tract impairment would have been 0% WPI.
· The MA fell into demonstrable error by failing to provide adequate reasons in relation to his conclusion that Ms Palmer suffered from “symptoms and signs of digestive tract disease”.
· The MAC dated 28 June 2021 by MA should be revoked and the Appeal Panel issues a further certificate in which the extent of Ms Palmer’s permanent impairment for the upper digestive tract is amended to 0% WPI and the combined assessment of permanent impairment is amended to 14% WPI.
The respondent’s submissions dated 29 September 2021 included the following:
· In relation to permanent impairment for the upper digestive system, paragraph 16.9 of the Guidelines provide that:
oAMA 5 Table 6-3 (p 121) Class 1 is to be amended to read ‘there are symptoms and signs of digestive tract disease’.
oNonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.
· The findings by the MA did not amount to “signs” of digestive tract disease, meaning that 0% WPI should have been assessed.
· In the alternative, paragraph 16.9 of the Guidelines allows for an assessment of impairment of the upper digestive tract based on any objective evidence available that shows upper digestive tract disease. However, if none is available, 0% WPI must be assessed.
· Paragraph 1.6 of the Guidelines provides for the principles of assessment. It states that:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”
· The appropriate construction of paragraph 16.9, in view of paragraph 1.6, is that there is a requirement to assess permanent impairment as the worker presents on the day of the assessment, and that this is a fundamental principle of assessment. In relation to digestive tract impairment, subject to the existence of “symptoms and signs” of upper digestive tract disease on the day of assessment (which is disputed), the MA had to be satisfied that any objective evidence supported a finding of upper digestive tract disease on the day of assessment.
· The MA had before him three reports of Dr Kenneth Koo dated 18 September 2015, 2 October 2015 and 26 November 2015. It cannot be said that these reports, being nearly six years old, were indicative of the ongoing presence of upper digestive tract disease as at 13 May 2021, being the date of the MA’s assessment.
· Ms Palmer filed the report of Dr Yong, dated 23 September 2015, as directed by the Appeal Panel. Even if Dr Yong’s report had been before the MA, given that the findings of gastritis were nearly six years old, the report does not amount to objective evidence of upper digestive tract disease at the time of the MA’s assessment.
· In accordance with paragraph 16.9 of the Guidelines, the lack of objective evidence showing upper digestive tract disease at the time of the MA’s assessment, as well as the failure to identify “symptoms and signs”, should have resulted in an assessment of 0% WPI for the upper digestive tract.
Ms Palmer’s submissions include the following:
· Ground 1 – the MA fell into demonstrable error by relying on Member Haddock’s findings to make his assessment of permanent impairment. It was the role of the Member to determine whether there had been an injury and the role of the MA was to determine whether that injury gave rise to permanent impairment (Haroun).
· As set out in Shankar, “the assessment of the degree of permanent impairment remains wholly in the province of the AMS”. The appellant conceded at paragraph 10 of the submissions that Member Haddock did not make any assessment of permanent impairment. The MA at paragraph 10b of the MAC stated:
“she continues with distressing symptoms of gastro-oesophageal reflux disease. As stated earlier this is in part due to her increase in weight since the accident where she had not been able to exercise as a result of her musculoskeletal problems, which in turn are related to the accident”.
This paragraph demonstrated that MA agreed with the determination of Member Haddock, and it was incorrect to infer that he was bound by it. This was further supported at paragraph 4 of the MAC where the MA stated: “I consider the use of Voltaren, as well as other non-steroidal anti-inflammatory tablets, to have caused the symptoms of gastro-oesophageal reflux disease and stomach problems”.
· Accordingly, the MA proceeded to assess WPI pursuant to the AMA 5 and the Guidelines. Except for the finding as to legal causation, the MA did not rely upon the determination of Member Haddock to assess impairment of the upper digestive tract. As part of his examination, he stated:
“She has clinical signs on examination, as well as symptoms of upper digestive tract disease. She requires continuous treatment. Her weight has been maintained at more than the desirable level. Using clinical judgement, I would place her as having a 3% whole person impairment for the upper digestive tract”.
The MA came to an independent view as to permanent impairment of the upper digestive tract.
· The appellant sought to prove demonstrable error in relation to the MA’s statement that:
“Kerry Haddock has clearly determined on which report to accept and this is outlined in detail in the determination. It was accepted that she had an upper digestive tract impairment consequential to the use of medication in treating the musculoskeletal problems she had sustained”.
Associate Professor Truskett, relied upon by the appellant, found no impairment in the upper and lower digestive tract. The opinion of Dr Neil Berry relied upon by Ms Palmer, was that there was impairment in the upper digestive tract. The reference to “It has been accepted that she had an upper digestive tract impairment” was a reference to the MA accepting that there was impairment in that region having regard to his own clinical examination as set out in the MAC. If the MA’s comment above was taken to mean that he was bound to “accept” the report of Dr Berry as asserted by the appellant on the basis of Member Haddock’s Statement of Reasons, this would have led the MA to fail to exercise his independent clinical judgement and he presumably would have concluded that the injury yielded 10% WPI, consistent with Dr Berry’s report. Contrary to that, he independently assessed 3% WPI in relation to the upper digestive tract.
· The MA carried out an examination of Ms Palmer utilising his independent clinical judgement and assessed WPI, as was wholly within his jurisdiction. A fair reading of the MAC supported the proposition that the MA agreed with Member Haddock, as opposed to being bound by her Statement of Reasons, and that there was no demonstrable error in the MAC.
· Ground 2 – the MA fell into demonstrable error by failing to consider the reports of Associate Professor Truskett and subsequently failed to provide adequate reasons. In De Gelder (No 2), which was in the context of the Motor Accidents Compensation Act 1999 (NSW). In that case, the Court found that the absence of complaint in the notes of a treating chiropractor was a “significant piece of evidence” and ultimately found that the notes were not taken into consideration during the assessment. There is a distinction between that case and the present case on the basis that Associate Professor Truskett did not find permanent impairment in the upper digestive tract whereas Dr Berry did. Accordingly, once the MA found clinical signs on examination as discussed in paragraph 2.4 above and noting “She has clinical signs on examination”, he was persuaded that there was impairment in the upper digestive tract. Accordingly, following his clinical examination and pursuant to paragraph 16.9 of the Guidelines, it was not open to him to accept the opinion of Associate Professor Truskett that there was no permanent impairment.
· The MA noted that “there is a detailed discussion about the opinions of doctors, particularly Dr Phil Truskett as compared to that of her treating specialist, Dr Koo, Gastroenterologist, who has done a gastroscopy of her”. The reports by Associate Professor Truskett were considered by the MA and there was nothing to suggest that the reports were not taken into account, as was the case in De Gelder.
· The appellant appeared to submit that the MA ought to have given significance to Associate Professor Truskett’s inability to detect “symptoms and signs of digestive tract disease”. That assertion was flawed because as was outlined above, the MA detected clinical signs upon considering the gastroscopy which revealed gastritis and after conducting his own independent examination, noting he stated “she continues with distressing symptoms of gastro-oesophageal reflux disease” and he found “tenderness in the epigastrium to palpation”.
· Once the MA detected clinical signs and symptoms pursuant to paragraph 16.9 of the Guidelines, there was only one conclusion open to him, being that there was permanent impairment in the upper digestive tract. The measure of WPI was a matter entirely at the discretion of the MA.
· The MA considered Associate Professor Truskett’s reports which ultimately did not align with his own clinical examination. The basis for rejecting Associate Professor Truskett’s report was made clear by reading the MAC in its entirety and in particular, his clinical evaluation of the respondent. Accordingly, there is no demonstrable error in the MAC.
· Ground 3 – The MA fell into demonstrable error in finding that there were “symptoms and signs” of digestive tract disease, leading the application of incorrect criteria.
· The appellant asserted that paragraph 16.9 of the Guidelines creates a “strict requirement” that there are “symptoms and signs of digestive tract disease”. The appellant further asserts that “signs” take the form “clubbing of the fingers, the presence of liver palms or enlarged lymph nodes, which are all objective findings identifiable by the MA”. The appellant’s assertion was made out of context, given the upper digestive tract is within the body and accordingly, diagnosis is confirmed by way of reports of symptoms and diagnostic procedures.
· Ms Palmer underwent a gastroscopy in 2015 which revealed gastritis and the MA detected “tenderness in the epigastrium to palpation”. It is important to highlight that tenderness was present upon palpation. Accordingly, not only were there symptoms and signs of upper digestive tract disease, but there was objective evidence in the form of a gastroscopy.
· The MA made specific reference to the gastroscopy in paragraph 10b of the MAC and noted that Dr Kenneth Koo, Gastroenterologist, made a clinical diagnosis of gastro-oesophageal reflux disease.
· The appellant’s submissions in relation to this ground were misconceived and the correct criteria were applied.
· There was no demonstrable error in the MAC. The MA utilised the correct criteria and accordingly, there was no error in the MAC.
Ms Palmer’s submissions dated 1 October 2021 include the following:
· Ground 1 – the MA fell into demonstrable error by relying on Member Haddock’s findings to make his assessment of permanent impairment. It was the role of the Member to determine whether there had been an injury and the role of the MA was to determine whether that injury gave rise to permanent impairment (Haroun).
· The biopsy report of Dr Yong, dated 23 September 2015, is relevant medical history, and as such it ought to be taken into consideration by the Approved Medical Specialist and the Appeal Panel.
· Paragraph 1.6 of the Guidelines expressly states that an assessment of permanent impairment involves “taking into account the claimant’s relevant medical history and all available relevant medical information”.
· Ms Palmer has ongoing objective symptoms and signs of digestive tract disease in accordance with AMA 5 Table 6-3, and that she did so at the time of assessment by the MA.
· Ms Palmer in her statement dated 6 August 2020 said that she states that she continues to be troubled by gastrointestinal symptoms. The MA on page 3 of the MAC provided considerable detail about all of the medications Ms Palmer was taking and her medication history since the date of the accident. The MA noted that at the date of assessment Ms Palmer continued to take the medication of Somac relating to her gastrointestinal problems. At page 4 of the MAC, the MA noted that she continues to experience “epigastric pain which is at a constant low-grade level and is associated with nausea”. The MA went on to state that:
“The pain can increase to a very sharp level. This can come on when she eats spicy food. She has had to adjust her diet and tends to eat plain food as much as possible. She has reflux symptoms on lying down… She feels better with the use of Somac.”
· Ms Palmer therefore had signs and symptoms of upper digestive tract disease at the time of the medical assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Vegan the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “History Relating to the Injury”, the MA wrote:
“Around August 2015 she started developing continuous stomach and abdominal pain. Initially she was referred to Dr Kenneth Koo, Gastroenterologist. He was concerned about the medication she was taking, including strong amounts of narcotic analgesics. He initially felt it could be a gastro bug, but as her stomach and abdominal pain continued, he felt that she needed to have a gastroscopy done because of the medication she was taking. At this stage she was taking strong non-steroidal anti-inflammatory tablets in the form of Voltaren and Nurofen on a regular basis, as well as taking strong narcotic analgesics in the form of Tramal. Gastroscopy was performed at Fairfield Day Hospital by Dr Koo on 22/9/15. He found that she had some gastritis and informed her that she was suffering from gastro-oesophageal reflux disease. She ceased the non-steroidal anti-inflammatory tablets, but continued with the narcotic analgesia as she was still having severe pain in both knees and the right shoulder.
…
The medication chart has been provided. This shows that she was taking Advil from June to October 2017. Advil is Nurofen tablets and she was taking up to 4 tablets per day. This is a non-steroidal anti-inflammatory tablet known to cause damage to the lining of the stomach and oesophagus. She was also taking Panadeine Forte tablets, alternating with Endone. These are both strong narcotic analgesics known to cause chronic constipation, as well as slowing of the bowels. She was also taking Aropex, an antidepressant, on a daily basis. I note in October 2013 she was given Mobic tablets. Mobic is also a non-steroidal anti-inflammatory tablet. She was also continuing with Endone or Panadeine Forte. In late October she was placed on Celebrex to replace Mobic. Celebrex is also a non-steroidal anti-inflammatory tablet. The indication was for pain in both the right and left knee and the right shoulder. For 6 months up to 2014 she was taking Advil for pain in both knees and the right shoulder. For 3 months from May to August 2015 she put on Voltaren 15mg, 1-3 tablets, per day. Voltaren are very strong non-steroidal anti-inflammatory tablets known to cause damage to the lining of the stomach and oesophagus within a month of its use. From 2014 to 2015 she was again placed on Voltaren. As she started developing stomach pain she was placed on Somac, which is a protein pump inhibitor which reduces the acidity of the stomach by 70% and is used for countering the strong acid damage of Voltaren. From April to September 2015 she was again given scripts for Voltaren, as well as Somac. I note that after the gastroscopy done by Dr Koo she ceased Voltaren. I consider the use of Voltaren, as well as other non-steroidal anti-inflammatory tablets, to have caused the symptoms of gastro-oesophageal reflux disease and stomach problems.
She continued with Somac after the gastroscopy. She was also given Motilium to be taken on a daily basis. Motilium is a medication used to increase the movement of the stomach and small bowels and this was given as Dr Koo felt that she had a slow transit stomach which in turn could give rise to symptoms of gastro-oesophageal reflux disease. The Motilium will hasten the emptying of the stomach and increases peristalsis of the bowels so that bloating and pressure backwards, like in gastro-oesophageal reflux disease can be eased. The Somac and the Motilium was continued until January 2017. In January 2017 I note that she was taking Targin, a narcotic analgesic medication. She was placed on Celebrex tablets which are also non-steroidal anti-inflammatory tablets. However, this was only for 6 months and Celebrex was stopped. I note that in April 2017 when the Celebrex was stopped she was placed on Cartia, which is Aspirin and also a non-steroidal anti-inflammatory tablet, and with long term use of Cartia damage to the stomach is one of the side effects. However, from 2018 Cartia was stopped and she continued with Targin, Lyrica (a nerve tablet), Topviromet which she needed for her migraine attacks, Somac to reduce the acidity of the stomach and Aropex an antidepressant. She continued with this same medication, except in 2020 as she was putting on weight and possibly heading towards Type II diabetes and she was placed on Diaformin 1000mg twice daily to control her blood sugar levels”.Under Present symptoms, the MA wrote:
“In relation to her upper gastrointestinal system she continues with epigastric pain. This is constant at a low grade level and is associated with nausea. The pain can increase to a very sharp level. This can come on when she eats spicy foods. She has had to adjust her diet and tends to eat plain food as much as possible. She developed non-insulin dependent diabetes at the end of last year and has to control her diet. While she has nausea, there are no episodes of vomiting. She has reflux symptoms on lying down. She therefore needs to make sure that her stomach is empty before she lies horizontally down. She feels better with the use of Somac.
While her weight used to be 72kg it has now gone up to 95kg. This has worsened her reflux symptoms, but because of her non-insulin dependent diabetes she is trying to lose weight and she has lost around 10kg over the last few months, particularly with the use of Diaformin tablets.
She opens her bowels and has alternating diarrhoea and constipation. The diarrhoea could be up to 4-5 times per day. She usually goes through a period of 3 days of constipation followed by 3 days of diarrhoea. I note that Diaformin when initially started can also give rise to diarrhoea”.Under “Findings on Physical Examination” the MA noted:
“Upper Digestive System
There was no evidence of any clinical jaundice or anaemia. There was no stigmata of liver disease seen in the chest. There was no clubbing of the fingers or liver palms. There were no enlarged lymph glands palpable in the neck, axilla or groin. No distended veins were seen in the neck, chest or abdomen. No hernia was seen at the potential hernia orifices. Abdominal examination revealed a soft stomach. She was tender to palpation in the epigastrium. No shifting dullness or fluid thrill was present. The liver and spleen were not enlarged. No other organs were palpable. No other abnormal masses were felt. Percussion note was normal. Auscultation revealed normal bowel sounds”.Under “Summary” the MA wrote:
“As the result of taking pain relief in the form of narcotic agents and non-steroidal anti-inflammatory tablets, particularly Voltaren in the preceding years to 2015, she developed upper digestive tract symptoms. She also developed constipation prone irritable bowel syndrome as a result of taking strong narcotic analgesics. After the gastroscopy done by Dr Koo she was advised to stop taking the non-steroidal anti-inflammatory tablets. She did this but there are episodes were (sic) she was taking Mobic and Celebrex which are also non-steroidal anti-inflammatory tablets, but not as harsh as Voltaren. She has since developed gastro-oesophageal reflux disease. She has also gained considerable weight which could also contribute to her gastro-oesophageal reflux disease and lately as a result of gaining weight she has developed non-insulin dependent diabetes mellitus.”
Under “Reasons for Assessment” the MA wrote:
“With regard to the upper digestive tract, she has more than maintained her weight. In fact she has gained weight due to her inability to exercise as a result of knee and ankle problems. As a consequence she has gained a lot of weight and this contributes to the gastro-oesophageal reflux symptoms that she has had. In 2015 she had a gastroscopy which showed some gastritis. A clinical diagnosis of gastro-oesophageal reflux disease was made by her specialist. She requires continuous use of proton pump inhibitors in the form of Somac to control her symptoms. In spite of this she continues with distressing symptoms of gastro-oesophageal reflux disease. As stated earlier this is in part due to her increase in weight since the accident where she has not been able to exercise as a result of her musculoskeletal problems, which in turn are related to the accident. Furthermore, clinical examination today has revealed tenderness in the epigastrium to palpation. She therefore meets the criteria of having symptoms and signs of digestive tract disease as defined in Item 16.9, Chapter 16, page 78, Workcover Guidelines. She will fall into Class 1 impairment in Table 6-3, AMA 5, page 121. Class 1 includes 0-9% impairment. She has clinical signs on examination, as well as symptoms of upper digestive tract disease. She requires continuous treatment. Her weight has been maintained at more than the desirable level. Using clinical judgement I would place her as having a 3% whole person impairment for the upper digestive tract”.
The MA, in commenting on other medical opinion, wrote:
“There is a Certificate of Determination by member Kerry Haddock with a determination date of 12/4/21. This determination has examined in detail various medical opinions, in particular the main controversial point has been whether she has assessable upper digestive tract symptoms. It has been accepted that there is no lower digestive tract symptoms related to medication use. There is a detailed discussion about the opinions of doctors, particularly Dr Phil Trusket, as compared to that of her treating specialist, Dr Koo, Gastroenterologist, who has done a gastroscopy on her. His opinion has been agreed to with Dr Neil Berry, General Surgeon. Kerry Haddock has clearly determined on which report to accept and this is outlined in detail in the determination. It has been accepted that she had an upper digestive tract impairment consequential to the use of medication in treating the musculoskeletal problems she had sustained”.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel accepts the findings on examination that the MA made in the MAC.
Assessment of the upper digestive tract
Paragraph 19.9 of the Guidelines provides:
“Effects of analgesics on the digestive tract:
• AMA 5 Table 6-3 (p 121) Class 1 is to be amended to read ‘there are symptoms and signs of digestive tract disease’.
• Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.
...”
Ground 1 - the MA fell into demonstrable error by relying on Member Haddock’s findings to make his assessment of permanent impairment
The appellant submitted that the MA fell into demonstrable error by relying on the findings of Member Kerry Haddock in the COD dated 12 April 2021 to conclude that Ms Palmer suffered from permanent impairment of the upper digestive tract, as the Member lacked jurisdiction to make such a finding.
The Appeal Panel accepted that the MA, when commenting on the other medical opinion referred to the COD of Member Haddock dated 12 April 2021, wrote:
“This determination has examined in detail various medical opinions, in particular the main controversial point has been whether she has assessable upper digestive tract symptoms. It has been accepted that there is no lower digestive tract symptoms related to medication use. There is a detailed discussion about the opinions of doctors, particularly Dr Phil Trusket, as compared to that of her treating specialist, Dr Koo, Gastroenterologist, who has done a gastroscopy on her. His opinion has been agreed to with Dr Neil Berry, General Surgeon. Kerry Haddock has clearly determined on which report to accept and this is outlined in detail in the determination. It has been accepted that she had an upper digestive tract impairment consequential to the use of medication in treating the musculoskeletal problems she had sustained”.
Ms Palmer submitted that apart from the finding as to legal causation, the MA did not rely upon the determination of Member Haddock to assess impairment of the upper digestive tract and came to an independent view as to permanent impairment of the upper digestive tract.
The Appeal Panel was of the view that the MA was incorrect in stating Member Haddock had accepted that Ms Palmer had an upper digestive tract impairment (emphasis added) consequential to the use of medication in treating the musculoskeletal problems she had sustained. Member Haddock had, in fact, found that there was a consequential condition of the upper digestive tract as opposed to an upper digestive tract impairment. Therefore, the Appeal Panel concluded that the MA made a demonstrable error in stating Member Haddock had accepted that Ms Palmer had an upper digestive tract impairment.
The Appeal Panel proceeded to review the evidence in this matter.
The MA, following his examination of Ms Palmer, noted that she was tender to palpation in the epigastrium. He noted that in 2015 she had a gastroscopy which showed some gastritis and a clinical diagnosis of gastro-oesophageal reflux disease was made by her specialist, Dr Koo.
The MA recorded that Ms Palmer required continuous use of proton pump inhibitors in the form of Somac to control her symptoms but despite this she continued with distressing symptoms of gastro-oesophageal reflux disease.
The MA concluded that Ms Palmer met the criteria of having symptoms and signs of digestive tract disease as defined in Item 16.9, Chapter 16, page 78, of the Guidelines. He assessed her as having a Class 1 impairment in Table 6-3, AMA 5, page 121. The MA noted that Ms Palmer had clinical signs on examination, as well as symptoms of upper digestive tract disease, required continuous treatment and her weight has been maintained at more than the desirable level.
In a report dated 30 October 2019, Dr Neil Berry, Consultant General Surgeon, noted that Ms Palmer began to experience discomfort towards the end of 2013 getting epigastric pain and reflux. She was prescribed Somac by her general practitioner. Dr Berry noted that she had almost constant nausea and she also suffered with gas and bloating and intermittent constipation, diarrhoea and was occasionally aware of some bright rectal bleeding but was not aware of haemorrhoids. Dr Berry reported that in 2015 Ms Palmer was suffering from disturbed liver function studies, which were thought to be due to her analgesics, and she therefore came under the care of Dr Kenneth Koo, Gastroenterologist and underwent a gastroscopy on 22 September 2015. She was diagnosed as having gastro-oesophageal reflux disease, but no specific treatment was given apart from encouraging her to cease the Tramadol.
Under “Present symptoms”, Dr Berry noted that Ms Palmer continued to suffer epigastric pain, remained sensitive to foods, got occasional constipation and also cramping abdominal pain. On examination, Dr Berry noted that her weight was 105 kg, having gained 35 kg since the injury and there was epigastric tenderness without guarding or rigidity. He noted that the gastroscopy report dated 22 September 2015 reported a normal oesophagus, normal duodenum and there was mild erythematous antral gastritis. The biopsies excluded Helicobacter pylori infection. Dr Berry concluded that Ms Palmer had developed chronic gastro-oesophageal reflux disease as a result of her medication intake and irritable bowel syndrome. He noted that the upper digestive tract was assessed according to Table 6-3 on page 121 and Ms Palmer had symptoms of gastro-oesophageal reflux proven on gastroscopy and signs of upper digestive tract disease. Dr Berry noted Ms Palmer required appropriate dietary restrictions and the use of medications to control her symptoms and he placed her in Class 2 and assessed 10% WPI for her upper digestive tract.
Dr Max Ellis, Consultant Surgeon, in a report dated 17 March 2015, noted that Ms Palmer had developed upper gastrointestinal symptoms, epigastric pain, as a result of the analgesic medication for which she was now prescribed specific antacid medication, Somac. He concluded that there were upper gastrointestinal symptoms and impairment as a result of the analgesic medication, and assessed 4% WPI under Table 6-3 page 121.
Dr Kenneth Koo, treating Gastroenterologist, in a report dated 18 September 2015, noted that Ms Palmer presented for an evaluation of vomiting and epigastric discomfort reporting the onset of nausea, vomiting and diarrhoea two weeks ago. Dr Koo noted that Ms Palmer still had mild epigastric discomfort and vomiting every second to third day requiring Maxolon and that a stool test did not reveal infection. Dr Koo reported that a gastroscopy in 2012 was normal. Dr Koo made a diagnosis of a likely viral infection but proposed a gastroscopy and a trial of probiotics.
In a Gastroscopy report dated 22 September 2015, Dr Koo made a diagnosis of gastritis and under “Findings” wrote:
“Normal oesophagus. Mild erythematous antral gastritis was observed. Normal duodenum”.
In a report dated 2 October 2015, Dr Koo noted that the gastroscopy to investigate nausea, vomiting and epigastric discomfort showed mild chronic gastritis. He reported that since the procedure, Ms Palmer has ongoing nausea, vomiting and epigastric discomfort. Dr Koo considered it was likely that her symptoms were from a combination of nonsteroidal anti-inflammatory drugs (NSAID) gastropathy and delayed gastric emptying from opiate analgesia. He suggested a reduction in the use of opiate analgesia, although he noted that might be difficult.
In a report dated 26 November 2015, Dr Koo noted a worsening of nausea and abdominal discomfort after knee surgery and advised Ms Palmer to reduce NSAIDs and opiate analgesics because of gastric toxicity.
In a report dated 12 October 2020, Associate Professor Truskett, Consultant Surgeon, noted that Ms Palmer began to experience upper gastrointestinal symptoms, in the form of epigastric pain in the upper abdomen with episodic stabbing epigastric discomfort, in late 2014 to early 2015. He noted that she underwent an endoscopy in 2015 and was told that she had gastroesophageal reflux. On examination, Associate Professor Truskett noted a BMI of 34.8, some palmar erythema and the abdomen was soft. He made a diagnosis of gastroesophageal reflux disease and of diarrhoea predominant irritable bowel syndrome. Associate Professor Truskett concluded that there was no relationship between her ongoing gastro-oesophageal reflux symptoms and the medications Ms Palmer took and the injuries sustained on 17 June 2013.
Although he considered it unnecessary because there was no relationship between her ongoing gastro-oesophageal reflux symptoms and the injuries sustained on 17 June 2013, Associate Professor Truskett proceeded to assess impairment. He referred to the Guidelines at page 78, Chapter 16, paragraph 16.9.1 which states that the AMA 5 Table 6-3 (page 121 Class I) is to be amended to read “there are symptoms and signs of digestive tract disease”. He concluded that in this regard there were no signs demonstrated and symptoms only, so 0% WPI whole would be assigned.
In a supplementary report dated 10 February 2021, Associate Professor Truskett noted that Ms Palmer was currently not taking any NSAIDs. He expressed the opinion that any gastritis described in the gastroscopy on 22 September 2015 would have resolved if it was due to NSAIDs as it was not a “permanent effect of the medication and resolves with cessation.” He concluded: “If she had persisting mild gastritis it would not be due to NSAID or opioids and would therefore constitutional. And not an anatomic alteration as required by the NSW WorkCover guide…” The Appeal Panel does not agree that “if she had persisting mild gastritis, it would not be due to NSAIDs or opioids and would therefore be constitutional and not an anatomic alteration”.
The Appeal Panel noted that Associate Professor Truskett in his examination on 12 October 2020 under “Current Status” noted that Ms Palmer experienced pain in her epigastrium. However, under “Examination” he reported that her abdominal wall was soft but did not find that she was tender to palpation in the epigastrium.
In a histopathology report dated 25 September 2015, Dr Tao Yang, Pathologist, wrote:
“This gastric biopsy shows gastric body and antral type mucosa with mild chronic inflammation in the antral mucosa. No Helicobacter pylori organisms can be seen on a special stain. There is no evidence of intestinal metaplasia, dysplasia or malignancy”.
Under summary, Dr Yang noted: “Gastric biopsy – Mild chronic antral gastritis”.
The Appeal Panel accepted the findings of the MA on examination, in particular, the finding that Ms Palmer was tender to palpation in the epigastrium. The Appeal Panel noted that Ms Palmer required continuous use of proton pump inhibitors in the form of Somac to control her symptoms but despite this still had symptoms of gastro-oesophageal reflux disease. The finding of tenderness to palpation in the epigastrium is a clinical sign of gastritis.
The Appeal Panel also called for the histopathology report of Dr Yang dated 25 September 2015. This report of the gastric biopsy showed gastric body and antral type mucosa with mild chronic inflammation in the antral mucosa. Dr Yang concluded that Ms Palmer had mild chronic antral gastritis. The biopsy report although six years old was histological evidence that Ms Palmer sustained an injury to her upper digestive tract.
The Appeal Panel accepted that the report of Dr Yang was six years old. Paragraph 1.6 of the Guidelines provides for clinical assessment of the claimant “as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”. The Appeal Panel agrees with the appellant that in relation to digestive tract impairment, the MA had to be satisfied that any objective evidence supported a finding of upper digestive tract disease on the day of assessment. However, in this matter, Ms Palmer has satisfied the criteria for symptoms and signs by virtue of the epigastric tenderness to palpation elicited by the MA on the day of assessment.
The Appeal Panel was satisfied that Ms Palmer met the criteria of having symptoms and signs of digestive tract disease as defined in Paragraph 16.9 of the Guidelines and had clinical signs on examination, symptoms of upper digestive tract disease, required continuous treatment and her weight maintained at more than the desirable level. The biopsy report showed gastric body and antral type mucosa with mild chronic inflammation in the antral mucosa. The Appeal Panel considered that Ms Palmer has a Class 1 impairment in Table 6-3, AMA 5 (page 121).
Class 1 provides 0-9% impairment. Ms Palmer has clinical signs on examination and symptoms of upper digestive tract disease. She requires continuous treatment and her weight has been maintained at more than the desirable level. The Appeal Panel assessed Ms Palmer as having a 3% WPI for the upper digestive tract.
The MA made an assessment of 2% WPI of the left lower extremity (knee), 8% WPI of the right lower extremity (knee and ankle), 2% WPI of the right upper extremity (shoulder), 2% WPI for scarring (TEMSKI). Therefore, the combined total assessment is 17% WPI in respect of the injury on 17 June 2013.
In summary, the assessment of total WPI by the Appeal Panel was 17% WPI in respect of the injury on 17 June 2013.
In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the MA. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2021 should be confirmed.
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